THE LIBERTARIAN ENTERPRISE
Number 695, November 4, 2012"The coming week may well change the course ofhistory, for better or worse. In my lifetime,it has always been worse. 2012 my prove to beAmerica's last good year, the beginning of aslide into a new Dark Age."

The lowest court to hear the free-speech case
against Phoenix, for censoring the "Guns Save Lives" Educate-Your-Kids
firearm-safety campaign, has decided against the plaintiff in the case,
Alan Korwin and TrainMeAZ, LLC. The TrainMeAZ campaign will proceed with an
appeal and Phase II, and is promising news on that soon. You can sign up
for bulletins
here.

Click the image for full details.
This is the advertising poster the city of Phoenix tore
down in the middle of the night.
It was posted under an $11,000 contract at 50 public bus stops
in high-traffic locations.
The campaign was financed by civic-minded sponsors in the
firearms community,
listed here, take a
look.

The court decision was not a total surprise, though the decision
itself was something of a stunner. Clint Bolick, the director of The
Goldwater Institute's Scharf-Norton Center for Constitutional
Litigation is the lead attorney representing TrainMeAZ on the case.
Korwin discussed this with him and attorney Christina Sandefur, who
has been on the case since it began.

"As expected, the judge ruled against us," Korwin said. "What is
shocking is the utterly superficial nature of the rulingone of
the worst any of us have ever seen, especially with the volume of
evidence and complexity of the case. We've been at this now for
two yearshearings, filings, sworn depositions, responses,
evidence gathered and submitted. Although we're displeased, our
interest is not diminished."

Clint commented, "Given the importance of the legal issues and
the extensive evidence showing that the City's advertising policy
is applied in a highly subjective manner, we were disappointed by
the cursory decision issued by the trial court. We're confident
that the Court of Appeals will give this case the attention it
deserves, and that in the end the plaintiffs' fundamental First
Amendment rights will prevail."



So here I was all set to bite into the meat of the decision,
win or lose, and the decision is so short (five paragraphs) and
so devoid of substance that there isn't much to say. Judge Brain
concluded that, "... if one where (sic) to carry plaintiffs'
arguments to its logical conclusion, Phoenix could only adopt
one of two policies: (a) anyone can advertise anything; or (b)
no one can advertise anything." It almost sounds like Brain was
late for a dinner and didn't bother to read the arguments or the
mountain of evidence the case generated.

The Goldwater Institute will be filing an appeal. It is typical
in cases like this, where the bureaucrats in power run rampant over
fundamental rights, that lower courts align themselves with the
bureaucracies and allow the travesties to exist, which is why such
cases must be filed.

The advertisements remained standing for
about nine days, illuminated at night.

The Institute for Justice, a friend of freedom and pro-bono
law firm which showed interest in our free-speech predicament
early on, recently commented on the difficulty of these types
of cases, in a recent report to its membership. They said it
better than I can:

"...court losses, especially at the initial stages, are
inescapable for cutting-edge constitutional lawyers. Indeed,
we tend to view an initial loss in a case as a good warm-up to
an ultimate victory... (such) cases are always uphill battles
because we are trying to change the law. In fact, if they
weren't such challenging cases, there would be no reason for
IJ to litigate them in the first place. Easy cases can be
litigated by anyone. Instead, we take cases as part of a
long-term strategy to improve constitutional protection
for individual freedom, particularly in areas of the law
where that freedom has been degraded by courts and
legislatures over time...

"But we do not win all of these cases at the trial court
or even necessarily at the mid-level appellate courts.
Instead, because our cases raise such difficult and important
legal issues, we often must go to the appellate or supreme
courts to secure a victory that then protects everyone's
rights.

"...In fact, losing some of our cases tells us that we
are litigating the right issues. Losses tell us that
rights are in jeopardy and are in need of protection. A
series of recent lower court losses in the area of free
speech for businesses is serving just this purposeit is
telling us we are on the right track in choosing our cases.
The standard rule is that free speech rights get very strong
protection, while government-imposed limits on economic
rights get substantial deference from the courts through
the 'rational basis test.'

"What happens, however, when businesses want to speak? IJ
has brought a series of such cases in recent years. Despite
the supposed high levels of protection for free speech in this
nation, our cases have not fared well in the courts. The
judiciary's reflexive deference to the other branches of
government whenever a law has anything to do with business
has outweighed even the strong protections of the First
Amendment.

"Our three losses in these business speech cases have all
been in the 4th U.S. Circuit Court of Appeals... The 4th
Circuit losses tell us that the law is in even worse shape
than we thought and therefore that IJ's work is desperately
needed. We must redouble our commitment to protecting the
right to earn a living through speaking and the right of
everyone to speak freely, including people who own small
businesses.

"Through resilience and persistence, we will secure
protection not only for free speech but economic liberty,
property rights and school choice, as well." That commentary
was penned by Dana Berliner, IJ's litigation director, and
echoes Goldwater's sentiments to a tee. It's a small
worldDana succeeded Clint as IJ litigation director
after Clint moved to the Goldwater Institute.

In oral argument at court, the attorney for Phoenix
said, "We shouldn't have to be tarnished," with messages
like TrainMeAZ's, and that political "diatribes" cannot
be allowed. "It's the political ideology that we do not
want," the city of Phoenix said. Those are quotes from
the city's oral argument in court. They didn't fight
with our headlines so much as the text we provided for
people standing waiting at the public bus shelters.

Bolick and Sandefur preparing for oral argument.

Our text for bus riders is designed to draw them in and
convince them training is valuable and something they should
get: "In Arizona, marksmanship matters. 'The Train-Me State'
knows that a nation, trained to arms, is an American linchpin
of freedom, and is respected in Arizona like nowhere else.
The Arizona legislature has enacted vibrant protection of the
Second Amendment right to keep and bear arms. We in Arizona
seem destined to set models for the nationin this case,
a shining example of gun rights for all free peoples of the
Earth."

That's the tarnish the city of Phoenix doesn't want people
to see. Read the rest
here. We can't tell
from their policy (which they changed after our lawsuit was
filed by the way) which words are OK and which are not. No
one can. In sworn depositions, even their experts couldn't
tell what was allowed and what wasn't. Yet the "standards"
are supposed to be clear to an average person of ordinary
intelligence.

In other words, they decide what to allow in secret back
rooms when no one is looking and you're not supposed to
complain. That's their idea of free speech. You should have
seen them squirm and evade and avoid when they were under
oath. It was mind boggling. I had to keep my mouth shut and
just watch. Now THAT was hard.

Everything in our ad is aimed at motivating and persuading
the viewer to go to the website and hire trainers, go to classes
and get educated about gun safety and marksmanship. (Arizona
firearm trainers reading this should go to
TrainMeAZ.com and sign
up, it's free.)

We even go after a person's stomach: "This is why the TrainMeAZ
campaign exists. Acting as one, the state rises up to encourage
and enable gun-safety training, fun shoots, special training
days at the range, a coordinating point for the state's
thousand-plus certified trainerswith web-interactive and
printed maps for the people. Soak up family days where the
shooting sports are honored and enjoyed, with that
freedom smell of gunpowder and a good hot dog."

I've never been a plaintiff in a lawsuit before but this sure
feels right. I'm lucky to have the Goldwater Institute on my
sidethere would be no way to do this without them. They
deserve your supportfinancial, moral, or just follow their
exploits by getting their email alerts.
http://goldwaterinstitute.org/

The core of the lawsuit from my non-lawyer perspective

Phoenix claims that because a public-transit bus stop is a
non-public venue (you read that right), they can limit speech on
ads there to only those that "propose a commercial transaction"
(with small exceptions for porn, fraud and similar). I know, I
know, claiming a public bus stop is not a public venue is nuts,
but it's a fine point of law and we're not even arguing that, go
read the "Children of the Rosary" case at the beloved Ninth
Circuit Court if you're really interested. Goldwater has all the
papers posted here.

The real issue is that our ad does indeed propose a commercial
transactionpaid training: Educate Your Children, which promotes
paid training and range time and classes at
TrainMeAZ.com (go look) but
the city falsely claims it doesn't. And the city has allowed all
sorts of totally non-commercial ads, including public-service ads,
which are supposed to be specifically banned. But they like those,
so they let them run.

They have allowed ads for free pregnancy tests (where's the
commercial transaction in that?) and free veterans counseling (another
clear public-service ad, and a good thing, but not allowed under their
"standards"). They even have an ad that says "Jesus Heals" with a cross
made of band-aids and a radio station named. This is a commercial
transaction? Don't let Jesus know. Judge Brain mentioned none of
this, and a ton of other clear examples that Goldwater attorneys and staff
spent enormous time and effort researching and presenting, that Brain
ignored, in what passes for his ruling.

In other words, the city's decisions about what you're allowed to
say are arbitrary, capricious and decided at the whim of bureaucrats.
The judge's ruling basically ignores the facts and evidence in the
case and simply finds for the city on a whim. No reasonable person can
apply their "standards" in a meaningful way and come out with consistent
results. This denies a person's right to free speech, equal treatment
under the law and due process, the grounds for our First and Fourteenth
Amendment challenges under state and federal constitutional protections.
We shall proceed.

This has been hard on me personally, and has been a major setback
to our small business startup, the TrainMeAZ.com firearms-safety
referral business for the state, for more than two years now. In a
time of economic difficulty, the government has put the brakes on a
golden business opportunity and a safety opportunity for the public.

The goal was to expand the market for gun-oriented training, now
that Constitutional Carry is in place in Arizona. The market potential
has explodedfrom the 2% of people willing to bow and scrape before
the government for a permission slip to discreetly bear arms, to the
50% of the public who keep arms. Government takes a small step out of
our way and it's a potential economic stimulus package all by itself.

Instead of catering to the government-enforcement model, where
classes and course content are dictated by government, it makes sense
for everyone to get firearms training. Instead of a government-induced
training cartel, with "official" trainers sanctioned by unelected
bureaucrats, NRA-certified and other free-market forces can fill the
void and promote firearms safety as a legitimate and wholesome
pursuit.

Two years later, government is still in the way. The ambitious
dream of marketing firearms safety and marksmanship to the general
public, the way drug makers sell cures for all that ails you,
remains a lofty goal. But it remains.